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2010 Supreme(Cal) 835
High Court of Judicature at Calcutta
ASHIM KUMAR BANERJEE & RAGHUNATH RAY
Bhaktu Gorain & Others
Versus
The State
CRA NO. 181 OF 2000
Decided On : 21-07-2010
For the Appellants:J.N. Chatterjee, Uttam De, Advocates.
For the Respondent:R. K. Ghosal, Minati Gomes, Advocates.
The prosecution has the burden of proving the charge against the accused beyond reasonable doubt, and the court must carefully evaluate the evidence, including the credibility of witnesses, to reach a just decision. Non-examination of the I.O. does not automatically render the prosecution case vulnerable, and the court must consider the specific circumstances of each case.
Headnote:
CRIMINAL - TRIAL - MURDER - CONVICTION - APPEAL - DISMISSED - SECTION 302/34 IPC - COMMON INTENTION - EVIDENCE - APPRECIATION - WITNESSES - CREDIBILITY - NON-EXAMINATION OF I.O. - EFFECT - SECTION 161 CR.P.C. - STATEMENT - RECORDING - LANGUAGE - SECTION 114(G) EVIDENCE ACT - PRESUMPTION - APPLICABILITY - WITCHCRAFT - KILLING - SOCIAL EVIL - CONDEMNATION.
Fact of the Case:
In a remote hamlet of Purulia district, a sexagenarian tribal widow was brutally murdered by some villagers in the presence of her siblings, family members, and co-villagers, as she was suspected of witchcraft and causing ailments to a fellow villager's wife.
Finding of the Court:
1. The prosecution has fairly succeeded in bringing home the charge against all the five appellants under section 302/34 IPC. 2. All the appellants had a common intention to kill the victim, and therefore, the aid of section 34 IPC should be invoked in this case. 3. Non-examination of the I.O. in all cases does not render the prosecution case vulnerable. 4. Since the credibility of eye witnesses remains unshaken and no major contradictions have also been shown in respect of their previous statement before the I.O., the prosecution case need not be brushed aside on that score alone.
Issues: 1. Whether the prosecution has proved the charge against the appellants under section 302/34 IPC? 2. Whether the appellants had a common intention to kill the victim? 3. Whether the non-examination of the I.O. has rendered the prosecution case vulnerable? 4. Whether the credibility of eye witnesses has been shaken or major contradictions have been shown in respect of their previous statement before the I.O.?
Ratio Decidendi: 1. The prosecution has successfully established the charge against the appellants through the testimonies of eye-witnesses, medical evidence, and circumstantial evidence. 2. The appellants' surrounding of the victim, their threats, and the nature of injuries inflicted on the victim indicate their common intention to kill her. 3. Non-examination of the I.O. does not render the prosecution case vulnerable, especially when the defense did not avail opportunities to confront the police officer with contradictions during cross-examination. 4. The credibility of eye witnesses remains unshaken, and no major contradictions have been shown in their previous statements before the I.O.
Final Decision: The appeal is dismissed as having no merit. The conviction and sentence recorded by the trial court are affirmed.
RAGHUNATH RAY, J
Introduction
Deep rooted prejudices and superstitious beliefs of the Middle Ages have not yet died down amongst the die-hard members of the tribal community even on the threshold of the millennium. That is why towards the last decade of the nineteenth century in a remote hamlet of Purulia district a sexagenarian tribal widow was done away with by some of the co-villagers in a ruthless manner in the presence of her siblings, other family members and co-villagers since it was suspected that because of her witchcraft a fellow villager’s wife suffered protracted ailments.
Background Facts
2. About more than two decades and a half ago in the early hours of the autumn morning one Keshari Mahatani was targeted for her magic power having evil effects upon family members of the villagers. Having been intercepted on her way back from a nearby pond accompanied by Bijoli Mahato, her daughter – in – law, PW 4 she was gheroed on all sides by the afore-named five accused armed with Tabla, Tangi and lathi. In response to their hue and cry, her two sons, other relatives and co-villagers reached the P.O. and witnessed a dastardly attack perpetrated on the wretched widow causing her instantaneous death. Accused, however, made good their escape. Such a ghastly murder was a fall out of yesternight’s altercation between the victim and accused who had been to her house for extending threat over the issue of exercise of magical powers causing evil effects upon the villagers.
Registration of Police Case & Submission of charge-sheet:-
3. Pursuant to an FIR, portraying gruesome details of the tragic incident lodged by Laxmi Mahato, PW 1, the eldest son of the unfortunate victim, Jhalda P.S. Case No. 110/93 dated 27.03.93 under section 302/34 IPC was registered for investigation and the case was endorsed to S.I. of Police B.B. Samaddar for investigation. In course of investigation the I. O. since deceased examined the available witnesses and recorded their statements under section 161 Cr. P.C. He also seized the incriminating weapon ‘Tangi’ under a proper seizure list in the presence of local witnesses. A sketch map of the P.O. was also prepared by him. He also collected P.M. Examination Report during investigation. On completion of investigation he submitted charge-sheet under section 302/34 IPC against all the FIR named five accused.
Commitment and framing of charge:-
4. Since the case was Sessions Triable one, the ld. Judicial Magistrate, First Class, 4th Court Purulia committed the same to the Court of Sessions vide his order dated 12.05.97 in G.R. Case No. 1255 of 1993. After such commitment of the case, ld. Sessions Judge, Purulia considered the question of framing of charge under section 302/34 IPC with reference to materials on record and submission advanced by both sides Head of the charge
5. Thus, all the Appellants being arrayed in Sessions Trial No. 5 of 1998 arising out of sessions case No. 37 of 1997 before the ld. Sessions Judge, Purulia were asked to answer the following charge :-
“That you, on or about 27th day of September, 1993 at village Khairi within the police station Jhalda, District – Purulia, did commit murder of one Keshari Mahatani wife of late Lalu Mahato of the aforesaid village in furtherance of common intention of all of you and thereby committed an offence punishable under Section 302/34 of the Indian Penal Code, and within my cognizance.”
All of them pleaded not guilty to the charge so read over and explained to them. Accordingly, the appellants were put on trial.
6. The defence case, as is gathered from the trend of cross-examination of prosecution witnesses and appellants’ examination u/s. 313 Cr. P.C. is the plea of innocence, denial and false implication. According to the defence, the incident as alleged did not take place in the manner and place as indicated by the prosecution.
The Trial :-
7. On consideration of entire evidence both ocular and documentary, ld. Sessions Judge Purulia
